A lawyer for nurse and AFLW player Deni Varnhagen has told the Supreme Court that challenging the COVID-19 vaccine mandate for healthcare workers in South Australia is "a case about power".
Ms Varnhagen and a fellow nurse are seeking judicial review of the state government's March 2 decision to extend the state of emergency for 28 days and for the vaccine mandate to continue for healthcare workers.
Simon Ower QC, for the two nurses, told Justice Judy Hughes that the challenge was not about the "wisdom" of the mandate.
"It's a case about power," he told the court.
He said the state coordinator, Police Commissioner Grant Stevens, was "acting in excess of his power" by mandating vaccines under the Emergency Management Act.
"They contend that if the approval of the Governor to extend the state of emergency on the 4th of March was itself invalid, any direction that was thereafter imposed is no longer in effect," he said.
"Alternatively, if indeed the state of emergency in this state is still continuing, the healthcare worker vaccination direction in itself was made in excess of power, on grounds it lacks proportionality and is unreasonable."
He said there was "no evidence" before Mr Stevens to support his findings that mandatory vaccinations were required to reduce the risk posed by the Omicron variant.
The court heard Ms Varnhagen – an inactive Adelaide Crows player – was not vaccinated against COVID-19 and lost her nursing jobs at the Flinders Medical Centre and Glenelg Day Surgery due to the mandate, and was "working as a casual labourer two to three days a week to survive".
Mr Ower said Ms Varnhagen did not get vaccinated because she believed the mandate direction left her with no choice and it was being forced on her.
"She believes she's being coerced into doing so in order to keep her employment," he said.
He told the court the vaccine mandate for healthcare workers was a "one size fits all" policy with "no possibility of individuals being taken into account".
The court heard Chief Superintendent Stuart McLean was considering advising Mr Stevens about whether to change the vaccine mandates to include a third dose.
Mr Ower said Superintendent McLean asked the state's Chief Public Health Officer, Professor Nicola Spurrier, for health advice relating to whether the mandate should include a third dose due to the risk posed by Omicron.
He said Professor Spurrier replied in an email on January 5 that a third dose was required on the basis Omicron was spreading rapidly in South Australia, and two doses were not providing enough protection.
"There is sound scientific evidence that a booster or third dose markedly increases vaccine effectiveness against Omicron," the court heard Professor Spurrier wrote in her email.
Mr Ower said that, based on that email, Mr Stevens gave a direction to healthcare workers saying they would require a third dose to remain employed.
"It appears that constitutes the sole medical basis upon which the state coordinator was advised in relation to the risk of Omicron and the potential effectiveness of vaccines against its onwards transmission," Mr Ower said.
"Throughout February, officers of SAPOL repeatedly asked for more detailed health and medical advice in relation to the risk of Omicron and the vaccine efficacy from Professor Spurrier — such advice was never given."
Mr Ower told the court that on January 9, Superintendent McLean emailed Professor Spurrier asking again for advice about the necessity of the third-dose direction.
"Later that afternoon, Professor Spurrier does respond, which cuts and pastes her earlier email sent on the 31st of December … with dot point, dot point, dot point," he said.
"Professor Spurrier's basis for those assertions were not explained. The Chief Superintendent continued to request information in relation to the matter."
The trial continues.
